Left Behind

It’s weird when elected officials respond to electoral incentives.

It shouldn’t be—that’s Democracy 101—but I’ll never get used to it. For most of my adult life, standard practice for the losing side in presidential elections has been to question the legitimacy of the outcome and/or to vow defiantly to obstruct the victor’s agenda.

After George W. Bush prevailed in 2000 with help from the U.S. Supreme Court, Democrats dubbed him “selected, not elected.” After Barack Obama won a sweeping victory in 2008, Mitch McConnell declared it his highest political priority to make Obama a one-term president. After Donald Trump upset Hillary Clinton in 2016, the so-called Resistance began staging mass protests on Day 2 of his administration. After Joe Biden defeated Trump in 2020—well, you know all about that.

Even the cleaner presidential outcomes of the past 25 years didn’t lead the losing party to reckon with its failures. Bush was reelected with a majority of the popular vote in 2004 but Americans had already begun souring on the Iraq occupation. Within two years, anti-war sentiment would propel Democrats to a large House majority. Ditto for Obama’s easy victory in 2012: Despite a brief bout of GOP hand-wringing over immigration afterward, congressional Republicans stayed the course on border enforcement and Tea Party fiscal policies. Their party ended up pulverizing Obama’s Democrats in the 2014 midterm.

The 2024 election is the first one this century where the losing party seems thoroughly chastened by the result and convinced that it needs to rethink its approach in order to compete with the victors going forward.

Well … 2020 was like that too in a sense. McConnell and a number of centrist Senate Republicans ended up cooperating with the Biden administration on numerous big-ticket legislative items—an infrastructure package, the CHIPS Act, a gun-control bill, military aid for Ukraine, and the Electoral Count Reform Act. They did so, I suspect, because they looked at Trump’s 2020 defeat and the aftermath and deduced that swing voters had come to view the GOP as, well, crazy. To convince them otherwise, moderate Republicans resolved to prove their sanity by working with Democrats on matters of mutual interest.

They responded to electoral incentives, in other words, or at least what they thought the electoral incentives created by the 2020 election were. Then their party turned around and renominated the same once-convicted, twice-impeached, four-times-indicted coup-plotter who had lost the previous election and American voters turned around and reelected him, proving they don’t care a jot about sanity when the price of eggs is high. Frankly, if there’s any evidence that the Senate GOP’s bipartisanship mattered to swing voters on Election Day last year, I’ve missed it.

Still, it’s refreshing when the losing party tries to learn a lesson from election outcomes, even when it’s the wrong lesson. The lesson Democrats learned in November, which I think is the right lesson, is that “if liberals insist that only fascists will enforce borders, then voters will hire fascists to do the job liberals refuse to do.”

Which brings us to the Laken Riley Act.

Lessons learned.

The Riley Act is named for the young woman murdered last year in Georgia by an illegal immigrant from Venezuela. That immigrant, Jose Ibarra, had previously been caught shoplifting but was given a misdemeanor citation and released instead of being hauled in, leaving him free to kill. Among other things, the Riley Act would require mandatory federal detention henceforth for any illegal immigrant arrested for theft.

The bill passed the House last year but went nowhere in the Senate, unable to draw Democratic support partly due to some argle-bargle in the text denouncing Joe Biden and Kamala Harris for their open-borders policies. A lot has changed since then: The language about Biden and Harris was stripped out, Republicans took control of the Senate and put the bill on the floor, and voters reinstalled a miscreant as president because he’s at least willing to treat massive unchecked population inflows across the southern border as a problem.

Democrats learned their lesson. On Thursday the Senate voted to open debate on the Riley Act by a broadly bipartisan margin of 84-9, with 31 members of Chuck Schumer’s conference voting in favor.

The face of left-wing support for the legislation is Pennsylvania Sen. John Fetterman, who’d been trotting toward the center for more than a year but has begun racing there since Republicans cleaned up in his home state on Election Day. On Tuesday he appeared on the right’s favorite news network and made the case for passing the Riley Act in stark electoral terms. “If we can’t [come] up with seven votes,” he said of his Democratic colleagues, “if we can’t get at least seven out of 47 … then that’s the reason why we lost.”

He’s not kidding. If you haven’t seen the gruesome exit poll data on immigration, feast your eyes. As a matter of basic politics, supporting bills like the Riley Act is a no-brainer for purple-state Democrats like Fetterman, and worth strong consideration even by blue-state senators who could get away with voting no. The party desperately needs to communicate newfound seriousness about reducing illegal immigration; the more unified the conference is in doing so, the stronger that signal will be sent.

There’s just one catch. The Riley Act isn’t very good legislation.

I recommend reading columnist Catherine Rampell and attorney Ilya Somin to better understand its defects but the case against it boils down to two points. One: The bill might have the perverse effect of freeing more dangerous criminals than it detains. There’s a finite amount of federal detention space, after all; if every accused thief in the illegal population now needs to be warehoused by the Department of Homeland Security, the feds will quickly run out of room and have to start letting other detainees go.

The next Jose Ibarra might be a hardened criminal who’s sent to a DHS facility but turned away and released because the bed that would have been assigned to him is occupied by some petty shoplifter who’s no threat to anyone.

Two: The bill isn’t limited to illegal immigration. It grants state attorneys general standing to sue to block certain legal forms of entry—like visas and humanitarian parole for those fleeing mayhem in their home nation—if the federal government isn’t enforcing immigration law rigorously enough in their states. For instance, if a country doesn’t fully cooperate with DHS on receiving deportees, a state AG could file suit to stop visas from being issued to highly skilled legal immigrants from that country—which might harm the U.S. on balance, has little to do with violent crime committed by illegals in any event, and would create something like a veto for red states over the next Democratic president’s immigration policy.

“The bill, in other words, is a prime example of the sort of dilemma that Republicans are likely to torment Democrats with throughout this Congress,” The Bulwark’s Andrew Egger wrote on Friday. “It dangles an opportunity Democrats want—an opportunity for a tough-on-immigration vote—and threatens further damage to their brand if they don’t play ball. … But it also quietly includes alarming structural changes that Democrats would never sign onto on their own, ratcheting up the pain of passing it.”

What should Senate Democrats do?

A hill to die on?

I think they should support the bill, however reluctantly. What’s the realistic alternative?

Obviously they can and will try to amend it to remove at least the provisions about legal immigration but I can’t imagine they’ll succeed. They have no leverage. Immigration is the incoming president’s pet issue, the one thing above all others on which he can plausibly claim a mandate, and he won decisively on the issue on Election Day, as noted above. The GOP is momentarily in a position to dictate terms to Democrats, particularly with Fetterman offering them cover on the bill. They have no reason to agree to an amendment.

Immigration will also assuredly be the defining issue of Trump’s second term, promising many more dilemmas to come of the sort Egger described. The Riley Act is a minor skirmish in a war whose major battles will be fought over mass deportation and ending birthright citizenship. Democrats need to somehow boost their credibility on immigration with centrist voters while condemning Trump’s inevitable enforcement abuses in order to appease their base. Which hill do they want to die on? They need to pick their spots.

An early legislative concession would give them a leg to stand on in the fights to come: “We’re against cruelty and brutality, not enforcement per se. We helped pass the Riley Act, didn’t we?” 

Someday when Democrats regain total control of the federal government they can quietly undo the act’s language on legal immigration by sticking its repeal somewhere in a must-pass funding bill. But the alternative, filibustering the Riley Act now, would amount to betting that Trump’s immigration agenda will prove so unpopular by 2026 or 2028 that the left will be rewarded rather than punished by voters for having relentlessly obstructed it. I would not make that bet.

Heck, some centrist Democrats like Fetterman might even regard the provisions in the bill granting red states a veto over federal immigration policy as more of a feature than a bug. The last thing those centrists need in 2028 and beyond is Biden redux, where a member of their party waltzes into the White House and decides that enforcing the border is more or less optional. Having the threat of Republican lawsuits hanging over a Democratic president’s head will make it easy for him or her to justify being stickler on immigration to progressives. I’d like to have open borders, you see, but that damned Laken Riley Act has forced my hand.

Speaking of which: Won’t progressives be furious if Democrats help pass this bill?

Maybe. Probably. So? Who cares?

At no point in the past 20 years has the left been as weak politically as it is now. During the Bush years it gained strength by opposing the Iraq war; during the Obama years it exulted in the triumph of the “coalition of the ascendant”; during the Trump years it galvanized the Resistance and saw its party win the presidency and both houses of Congress in 2020.

But in 2024 it’s a spent force. Economist Noah Smith summarized the state of progressivism this way: “The grassroots activists only care about Gaza and bashing Democrats (or got exhausted and quit politics), the Warren/Roosevelt Institute approach turned into a bunch of pork, and identity politics just drove Latinos to the GOP.” Ask the average voter what they think of when they think of leftist government and I expect they’ll offer some mix of urban chaos, gender madness, fruitless spending, and a border policy that views anything less than complete neglect as proof of xenophobia.

No wonder, then, that this was the first presidential election this century in which the losers validated the result as a verdict on their shortcomings and accepted voters’ demands that they do better. Democrats themselves have been carping for years about the cultural baggage with which progressives have saddled them—or with which they’ve foolishly chosen to saddle themselves. To lose to a figure as loathsome and unfit as Trump, a party needs to go above and beyond in convincing voters that it can’t be trusted to govern. Democrats managed it. It’s so shocking and dispiriting that they can’t muster the usual quadrennial excuses in defeat.

Ten days out from Trump’s inauguration, there are no major protests planned of which I’m aware. Joe Biden will rubber-stamp Trump’s legitimacy by attending the ceremony, seated a few feet from the man who tried to make him the victim of the first coup in American history. When the new president speaks, he’ll do so as the first Republican in 20 years to have won the popular vote. The fact that, as of Friday morning, he’s officially a convicted felon has passed largely without comment by his opponents.

There’s no “resistance” this time because liberals—including progressives—seem to have digested that the American appetite for progressivism isn’t what they thought it was. There aren’t enough college-educated voters in the party’s new coalition to replace all of the working-class voters whom they’ve scared away.

So the left is being left behind by Democrats. For now.

The backlash to come.

But not forever.

Watching Senate liberals rally behind the Laken Riley Act, I thought of the party’s turn toward the center in the early 1990s under Bill Clinton. One of the major legislative initiatives to pass Congress during that era was the federal crime bill written to assuage spiking anxiety over public disorder. Its author was Sen. Joe Biden of Delaware.

Progressives held that against Biden in the 2020 Democratic presidential primary. Someday when they’ve rebuilt some political capital, they’ll hold the Riley Act against Senate Democrats who helped Republicans to pass it. I don’t think they’re dumb enough to primary John Fetterman in a reddening state where, by dint of his incumbency and his bipartisan appeal, he’s plainly his party’s best option to hold his Senate seat. But could they stage a comeback in an America polarized by Trump and sink Fetterman in a presidential primary in 2028 or 2032? You betcha.

It might not even take that long. One can imagine a world in which Trump’s mass deportation program proves so dubious or “bloody” that enraged leftists come to regard casting a vote for a Republican immigration bill as the domestic version of casting a vote for the invasion of Iraq in 2002. Hillary Clinton might have won the presidency in 2008 or 2016 if she had had the foresight to oppose the war as a member of the Senate. Instead she was never forgiven for having done the easy thing by going along with popular sentiment at the time.

Like Fetterman and Senate Democrats are doing now.

Still, there’s something to be said for doing the easy thing. If past is prologue, the next election (and the one after that, and the one after that) will be a referendum on the governing party with voters primed as ever to believe that America is on the wrong track. Should the Laken Riley Act prove to be a disaster, it ain’t Democrats who’ll take the brunt of public discontent over it. And if it’s a success, Fetterman and his colleagues will at least have reassured wary swing voters that they won’t be dooming America to more immigration dysfunction by electing a Democratic House majority in 2026.

The Laken Riley Act will probably be bad but in the end it won’t crack the top 100 worst things about a second Trump presidency. How’s that for an argument for Democrats to grit their teeth and support it?